Celebrating the 40th Anniversary of Title VII

Panel I - Tuesday, June 22, 2004

First Principles - Enacting the Civil Rights Act and
Using the Courts to Challenge and Remedy Workplace Discrimination

One hundred years after the Civil War, President John F. Kennedy
called on Americans to fulfill the nation's promise of equal rights
and equal opportunities. The President's decision to send civil rights
legislation to Congress followed a decade of increasingly insistent civil
rights activism inspired by the Supreme Court's rejection of the
pernicious "separate but equal" doctrine in the Brown v. Board of Education
decision. During the Spring of 1963 Americans and the world were shocked to
see civil rights demonstrators beaten, attacked by police dogs, sprayed with
high pressure water hoses, arrested and jailed. The immediate backdrop of
the President's action was the spectacle of the Alabama National Guard being
sent to carry out the unequivocal order of a federal district court to admit
two black students to the University of Alabama. In June the President
addressed the nation to say:

The events in Birmingham and elsewhere have so increased the
cries for equality that no city or State or legislative body can
prudently choose to ignore them. . . . We face, therefore a moral
crisis as a country and as a people. It cannot be met by repressive
police action. It cannot be left to increased demonstrations in the
streets. It cannot be quieted by token moves or talk. It is time
to act in the Congress, in your State and local legislative body
and, above all, in all of our daily lives. . . .Next week I shall
ask the Congress of the United States to act, to make a commitment
it has not fully made in this century to the proposition that race
has no place in American life or law.

The proposed legislation, which was the first major civil
rights legislation since the post-Civil War Reconstruction era,
seemed shaped principally to deal with the remaining vestiges of
Jim Crow and segregation, and to that end it addressed discrimination
in voting, public accommodations, and education, as well as employment.
Title VII's prohibitions of discrimination in employment had their roots
in the Unemployment Relief Act of 1933, which provided "[t]hat in
employing citizens for the purpose of this Act no discrimination
shall be made on account of race, color, or creed." The administrations
of Presidents Roosevelt, Truman, Eisenhower, and Kennedy all created
Fair Employment Practices Committees to investigate complaints of
discrimination against businesses with federal contracts.
President Kennedy's proposed legislation in 1963 simply continued
the long-standing practice of attempting to eradicate discrimination
by those doing business with the federal government through voluntary
compliance, without any enforcement mechanisms.

The employment provisions underwent significant revisions in the
cataclysmic months after President Kennedy first sent the bill to Congress.
On August 28,1963, 250,000 demonstrators marched on Washington, where
they and the nation were electrified by Dr. Martin Luther King Jr.'s "I
Have a Dream" speech. Afterwards, President Kennedy met with march
leaders to discourage them from trying to strengthen Title VII and other
portions of the bill because he feared that doing so would kill necessary
Republican support. Two weeks later several children were killed when a
black church was bombed in Birmingham, Alabama. Supporters of the Civil
Rights Bill responded by strengthening key provisions, especially the
employment measure. The amendments applied Title VII to all employers
with more than 25 employees, and created the EEOC and gave it cease and
desist authority. Members of Congress opposed to federal government
regulation of private enterprise felt betrayed by these developments.
President Kennedy worked to achieve a compromise that left EEOC as the
enforcement agency but took away its cease and desist powers. The bill
was sent to the Rules Committee the day before President Kennedy was
assassinated. Five days after the assassination, President Johnson
addressed a joint session of Congress to say: "We have talked long
enough in this country about civil rights. It is time to write the
next chapter and to write it in the books of law. . . .No eulogy
could more eloquently honor President Kennedy's memory than the
earliest possible passage of the civil rights bill for which he
fought so long." Passage of the bill became a priority for Congress
and was backed by public opinion; a December Newsweek poll showed that
62 percent of people supported civil rights; a National Opinion
Research Center survey showed 83 percent in favor of equal
employment opportunity. After extensive debate and lobbying
efforts by outside groups and the White House, Title VII was
passed in June 1964 by strong bipartisan majorities in both houses,
and signed into law by President Johnson on July 2, 1964.

Once enacted, with its simple prohibitions of discrimination in
employment decisions "because of" an "individual's race, color,
religion, sex, or national origin" and of "limit[ing], segregat[ing], or
classify[ing]" employees or applicants in any way that would deprive them
of employment opportunities or adversely affect their status
"because of" their "race, color, religion, sex, or national origin,"
thousands of people began to file charges with the newly created EEOC
and then to make their way into court.

Once challenges to the Civil Rights Act's constitutionality were
resolved, and questions about various procedural aspects of the
statute were answered, questions about the proof necessary to
establish a Title VII violation soon began to occupy the courts.
McDonnell Douglas Corp. v. Green and Griggs v. Duke Power Co.
authorized two different methods of proving discrimination–disparate
treatment and disparate impact–and one or the other is still invoked
in most discrimination cases involving circumstantial evidence. These
proof paradigms have proved adaptable to challenges to all types of
employment actions – from a failure to hire or promote to termination – and
to claims of discrimination on all bases enumerated in Title VII–race,
color, religion, national origin and sex. The McDonnell Douglas Court
also confirmed that individuals are entitled to a de novo trial of their
discrimination claims, regardless of the conclusions or actions of the EEOC,
thereby assuring the primacy of the private attorneys general in the
enforcement of Title VII. The courts also dealt early on with special
rules for proving and conducting trials in cases challenging broad
systemic patterns of discrimination, such as the challenge to the
discriminatory operation of the seniority system in Teamsters v.
United States.